On surprise clauses of general terms and conditions in German law with respect to the prohibition of Real Money Trade in the terms of Use of World of Warcraft

The subject of this article is Article 305c(1) of the German Civil Code, which contains a rule on the legal treatment of so-called surprising clauses in general terms and conditions. Namely, provisions in general terms and conditions which, in the circumstances, and particularly in light of the external appearance of the contract, are so unusual that the contractual partner of the user of the general terms and conditions could not have reasonably expected them do not become an integral part of the contract. The author provides an overview of the origin of this legal provision, then analyzes the criteria that must be met in a specific case for a clause of general terms and conditions to be considered surprising, discusses the issue of the allocation of the burden of proof between the user of the general terms and conditions and its contractual partner, provides an overview of the application of this rule in judicial practice and, finally, instead of a conclusion, analyzes whether the prohibition of Real Money Trade in the Terms of Use of World of Warcraft constitutes a surprising clause of general terms and conditions.